Sedgwick County families file lawsuits in tainted cantaloupe cases

Two lawsuits have been filed in Sedgwick County District Court on behalf of local victims of one of the most lethal outbreaks of a food-borne illness in the U.S. in decades.

The lawsuits seek damages from companies involved in a 2011 outbreak of listeriosis traced to tainted cantaloupe from a farm in Colorado.

The family of David Weimer, a 59-year old Wichita man who died of the disease in September 2011, and Charyl Rutherford of Haysville, who still suffers from the illness, are asking for payment in excess of $50,000 and $75,000 respectively from the company that sold the cantaloupe for the farm, the principal company in charge of auditing the farm for safety, and the stores that sold the tainted cantaloupe to the victims.

Bill Marler, a food-safety lawyer in Seattle who represents the Weimer family, said his lawsuit was filed because multiple efforts at mediation with all parties to resolve the matter have failed. The bankruptcy last year of the farm that grew the cantaloupe – Jensen Farms of Holly, Colo. – also delayed the process, he said. In addition, a two-year statute of limitations on the cases is close to expiring.

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“These are cases that should have been resolved,” said Marler, whose firm, Marler Clark, has filed or amended lawsuits in July and August on behalf of 44 families in 12 states who were affected by the outbreak. “There’s no question about the cause of their illness and no question about the cause of their deaths.”

Weimer, a special agent for the U.S. government, purchased tainted cantaloupe at Dillons stores in Wichita on several occasions in August 2011, according to Marler’s lawsuit, which was filed on behalf of the family on Aug. 13. He became ill with symptoms of listeria infection on Sept. 13, 2011. The next day he was hospitalized. He died on Sept. 19.

Weimer’s family declined to comment about the lawsuit. According a video of family testimonials that Marler provided to The Eagle, Weimer had recovered his health after two rounds of chemotherapy to treat leukemia. He was notified by the KU Medical Center just before his death that a donor had been found for a stem-cell transplant.

“Had he not eaten the cantaloupe, he would’ve been around today,” Marler said.

A suit filed on behalf of Charyl and Michael Rutherford claims that Charyl Rutherford, 70, a retired Southwestern Bell employee, ate tainted cantaloupe purchased at a Homeland store in Haysville on or about Sept. 4, 2011, and began suffering listeriosis symptoms a week later.

She was admitted to Via Christi on Sept. 14, remained hospitalized for 10 days, and continues to experience “severe and permanent disability” from the disease, according to the suit, which was filed Aug. 21. The suit says she will require medical help for the rest of her life.

The Rutherfords, who are represented by the Pritzker Olsen law firm of Minneapolis, Minn., also declined to comment.

Both suits charge negligence against Frontera Produce of Texas, which sold the cantaloupe for Jensen Farms, and PrimusLabs of California, which contracted with another company that audited the farm and gave it a high safety rating in July 2011, shortly before victims began falling ill. The FDA later found multiple safety problems at the farm, according the suits.

Dillons and Homeland stores are charged in the respective suits with negligence for selling the contaminated fruit to the victims.

Ken Anderson, an attorney for Frontera, said Frontera was a marketing agent that arranged for the contracts of sales to stores, but didn’t grow, harvest, or even touch the cantaloupe.

“It is definitely a tragic event, and Frontera’s heart goes out to the people affected by this,” he said. “But we didn’t actually handle the fruit.”

Representatives of PrimusLabs and the Dillons and Homeland stores couldn’t be reached for comment.

The Centers for Disease Control and Prevention ultimately determined that the outbreak lasted from August to October 2011 and resulted in 147 illnesses and 33 deaths in 28 states. It was the deadliest outbreak of a food-borne disease in the U.S. since 1924, according to the CDC.

Two Colorado men, aged 86 and 72, died of the disease two months ago after being infected in 2011.

In Kansas, 11 people became ill as a result of eating the tainted cantaloupe and three people died, according to the CDC. Marler also has filed a lawsuit in Johnson County involving a Kansas listeriosis victim who survived.

Listeriosis primarily affects older adults, persons with weakened immune systems, pregnant women, and newborns, according to the CDC. Symptoms include fever and muscle aches, often preceded by diarrhea or other gastrointestinal symptoms. Listeriosis is treated with antibiotics.

A recent outbreak of the disease has been linked to Les Frères, Petit Frère, and Petit Frère with Truffles cheese distributed by Crave Brothers Farmstead Cheese Co. of Waterloo, Wis., according to the CDC. As of Aug. 22, six people infected with the same strain of listeriosis have been identified in five states, none in Kansas.

Marler said the cantaloupe suits should be resolved by the end of 2014.

“I think things will move along pretty quickly,” he said.

Elliot Olsen, an attorney with Pritzker Olsen, which has asked for a jury trial for the Rutherfords, said he didn’t know when such a trial would be held.

“Typically we’re talking 18 months from now that there’d be a trial,” said Olsen, whose firm is handling similar cases in Colorado, New Mexico, Idaho and Indiana. “This case will probably settle somewhere along the way.”